431 A.2d 677 (Md. 1981), 109, Poffenberger v. Risser

Docket Nº:109.
Citation:431 A.2d 677, 290 Md. 631
Opinion Judge:[10] Digges
Party Name:Howard W. POFFENBERGER, Jr. v. Donald E. RISSER et al.
Attorney:[7] Russell R. Marks, with whom were Kenneth J. Mackley and Mackley, Gilbert & Marks on the brief, for appellant.
Case Date:July 09, 1981
Court:Court of Appeals of Maryland

Page 677

431 A.2d 677 (Md. 1981)

290 Md. 631



Donald E. RISSER et al.

No. 109.

Court of Appeals of Maryland.

July 9, 1981

Page 678

[290 Md. 632] Russell R. Marks, Hagerstown (Kenneth J. Mackley and Mackley, Gilbert & Marks, Hagerstown, on the brief), for appellant.

Conrad W. Varner, Hagerstown, for appellees.


DIGGES, Judge.

After the Court of Special Appeals affirmed the summary judgment entered by the Circuit Court for Washington County in favor of respondent-defendant Donald E. Risser, we granted certiorari to consider the propriety of the trial court's determination that this suit instituted by petitioner Howard W. Poffenberger was barred by limitations. 1 For reasons to be elucidated presently, we conclude that since there are factual disputes which must be resolved before this litigation may be properly concluded, vacation of the summary judgment is required.

There being no supporting or opposing affidavits relevant to the issues before us, we extract from the pleadings, attached exhibits, deposition and admissions the following: Howard W. Poffenberger, Jr., purchased in the summer of 1972 an unimproved lot in Brightwood Acres, a planned development located in Hagerstown, Maryland. The property [290 Md. 633] was acquired subject to a number of restrictions that were enumerated on the recorded plat of the subdivision, one of which directed that "no portion of any building except open porches and steps shall be located within 15 feet of any other side lot line." Following his purchase, owner Poffenberger allegedly contracted with builder Risser for construction of a home that would comply with all relevant restrictions and which was to be situated in the center of the lot. Fabrication of the dwelling was completed in December, 1972, and the Poffenberger family began their occupancy sometime during the following month. The home was erected in a new section of Brightwood Acres when no structures of any type were located on the adjoining several lots. In March, 1976, the parcel to the south of the Poffenberger property was surveyed preparatory to building a house there, and the petitioner became aware that his home had been located so as to violate the fifteen foot side lot set back requirement; it was fifty-one feet from the north side lot line, but only eight feet from the south line. Reacting to this discovery, Mr. Poffenberger initiated the present suit by filing a multi-count declaration in the Circuit Court for Washington County against builder Risser alleging both breach of contract and negligence, to which, in addition to a general denial, the respondent filed a special plea that the action was barred by limitations.

Page 679

The statute relied on by Mr. Risser in support of his limitations plea is Maryland Code (1974, 1980 Repl. Vol.), section 5-101 of the Courts Article, which reads:

A civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period of time within which an action shall be commenced.

There being an absence of statutory direction, the question when an action accrues is left to judicial determination. Harig v. Johns-Manville Products, 284 Md. 70, 75, 394 A.2d 299, 302 (1978). Thus, when the statutory bar of limitations is made an issue, it becomes necessary to judicially determine the date the suit accrued because that time triggers the [290 Md. 634] running of the statute. Depending upon the nature of the assertions being made with respect to the limitations plea, this determination may be solely one of law, solely one of fact or one of law and fact. In this case, builder Risser fixes the accrual date as the time when construction of the home began, or at the latest, when the Poffenberger family took up residence in it; either date would result in section 5-101 barring this suit. On the other hand, owner Poffenberger contends (as he must in order not to be time barred) that because of the latent nature of the wrong, his action did not accrue until he knew or should have known of its existence that is, when the next door lot was surveyed a little more than a year before this suit was instituted.

In Maryland, the general rule heretofore has been stated to be that the running of limitations against a right or cause of action is triggered upon occurrence of the alleged wrong, and not when it is discovered. Leonhart v. Atkinson, 265 Md. 219, 223, 289 A.2d 1, 3-4 (1972). However, the harshness of this general rule was readily observed and has in this State led to the creation of both legislative and judicial exceptions to it one among them, the "discovery rule." 2 Although perhaps timidly, the...

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